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03/19/2005

Response on Judicial Term Limits- BECKER

Some good knowledge about judicial history displayed in the discussion. Let me comment on a few of the issues-much of the discussion is among you that may continue.
The two law professors I refer too- Carrington and Cramton- believe that a change to term limits for Supreme Court Justices would not require a constitutional amendment. They and others believe that it would be constitutional for Justices after their terms are finished to become sort of roving judges at lower federal courts. I accept that conclusion.
It should be rather obvious that there would be less incentive to appoint young judges since they would have limited tenures, largely regardless of their ages. Under the present lifetime system, their expected length of service would be positively related to how young they are. Term limits are better than fixed retirement ages for several reasons. One being that even with a fixed retirement age, the incentive to appoint young Justices is still strong.
There is a concern that political jockeying by candidates would become more important than at present, but I believe the opposite would be true. There is now enormous and various kinds of jockeying among judges and other potential appointees, such as avoiding a paper trial, writing less controversial opinions, and in other ways. The prize now is a term at the highest level of 30 or more years for the typical appointee. Term limits reduces the size of the prize. The scrutiny by the Senate of every single opinion also should decline because the duration of each appointment would be much shorter.
When the Constitution was adopted, life expectancy at age 25 was more than 25 years lower than it is now. So life-time tenure for Justices appointed at age 40 meant an expected tenure of about 20 years, while now it means about 45 years. If the Founders had anticipated such a huge change, I believe they would have imposed either a retirement age or a maximum term.
At least one of you asks quite properly about the evidence indicating that we need a change toward term limits? I did present what evidence is available on the increase in average length of terms actually served by Justices, the growing infrequency of appointments, and the increasing controversy of appointments. All this means that Justices have become much more important, and less subject to natural forces of death or retirement.
It would be great to also have a detailed evaluation of the nature of their opinions, any changes in the degree of partisanship, the controversy generated by appointments and opinions, etc. I do not know of anyone who has done that kind of study. But the huge growth in legislation and litigation surely indicate that the importance of Supreme Court decisions has grown enormously, while the age and tenure of those making the decisions has also greatly increased. This evidence to me is highly suggestive (but it is not, I agree, ironclad proof) that a change is desirable

I think it comes down to the simple question of whether or not one is content with a supra-legislature of 9 self-appointed philosopher kings. If you think that's a bad thing, then a little accountability to the people doesn't sound like such a bad idea.

A side issue is how out of touch, even senile some of the justices may get in their later years. One other issue is whether it would be good to get more diversity in judicial philosopy on the bench. Increasing the number of justices via forced retirement and term limits is a certain device to accomplish that goal.

I think we can all agree that the length of judicial appointments have increased. The question is simply whether this is a bad thing, or more accurately whether this is a bad enough thing that it warrants substantial changes to our judicial system. Quite frankly your arguments even suggestive that these long terms are a bad thing much less rise to the level needed to warrant such a major change.

As I understand it you have two arguments which seek to establish that longer judicial term limits are bad. There are as follows.

1) If the framers had known about the future increase in life expectancy they would have imposed judicial term limits

2) A shorter term would make appointments less contentious and/or less politically charged.

The first point simply isn't an argument at all. Unless you think that the founding fathers were somehow more than men or gifted with divine insight this is no better than saying, 'it has to be true because bob thinks it is true'. I expect detalied historical investigation would reveal many things the founding fathers would have done differently had they known what would happen and not all of them good. Some of the slaveholding framers may have pushed for provisions preventing ammendments from ever abolishing slavery. Others might have been appalled at the degree to which we have replaced the indirect system of national election with direct election. Ultimately the founding fathers were just men with correct and incorrect beleifs like anyone else and saying they would have done X had they known Y is not a compelling argument that we should do X.

Moreover, I am unconvinced your claim is even true. What grounds do we have to think that the founding fathers would have changed their mind? At least as far as you have given us evidence it seems your reason for this conclusion is just that you support the conclusion and believe the founding fathers would see the wisdom of your position but this is just circular reasoning. I think it quite plausible they would have prefered the buffer from transient political tides that very long appointments would provide.

So if 1 isn't really an argument what about 2? Well my first problem with this point is I just don't think it is true. Do you really think senators are going to say, "well its only a 15 year appointment so I'm not concerned about their position on abortion or church/state separation." Regardless of term limits the selection of a supreme court justice will still be a very important deciscion and likely will result in just as much political wrangling.

Luckily though we need not rely on just vague speculation. There is an easy way to check the evidence to see if it supports this position. Is it true that older supreme court nominees, that is ones with a shorter expected term, have a less ideologically charged appointment process? If you wish to make an affirmitive case that shorter terms lead to less ideologically charged appointments the least you can do it provide this evidence.

Finally even if this second argument was established beyond a doubt and we agreed that a less ideologically charged appointment was a very valuable goal it is still unclear if this would overcome the harm intrinsic in changing the supreme court. Whether or not it requires a constitutional ammendment such a reform would encourage people to see the supreme court as a malleable political instrument and thereby both encourage more changes and erode the moral high ground the court occupies which encourages americans to accept the court's deciscions.

In short even if we grant you all your arguments they aren't sufficent to justify the massive change you propose.

l write from Ecuador, a country facing a judicial crisis due to a suspicious change in our Supreme Court: 27 elder justices were ousted by a group of congressmen and replaced with younger justices, but with clear bonds with politicians...
besides of the president's eager for power, one of the things that lead to this change was the lack of term limits for supreme justices (although, none of the prior justices had been ruled more than seven years). l understand that democracy does not combine with life-terms, both in ecuador and in USA, just as in any place in the world.

If term limits were to be imposed, it would probably be done gradually with a blanket exemption for current judges, not like they did it in Ecuador....

I'm skeptical about "life expectancy at age 25," back in 1789, being "25 or more years shorter than it is now." I think those life expectancy norms are skewed badly by large numbers of children who were stillborn (or nearly so), and by those who were carried off by childhood and adolescent diseases. One who had attained an age like 25 or 35 in 1789, often had gained immunity to smallpox and many other things, and would live nearly as long as his counterpart today, though not, of course, as long. And, if there is evidence that life expectancy at age 25 in 1789 was more than 25 years lower than it is now for all citizens, it does not necessarily follow that life expectancy for judges was more than 25 years lower than it is now. Sedentary, indoor, well-fed, well-clothed, well-protected and presumably more-intelligent judges were not exposed to many hazards and accidents which surely took a greater toll among all workers, most of whom did manual labor, than among judges.

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